Hurst v. Ohio Department of Rehabilitation and Correction et al

Filing 118

REPORT AND RECOMMENDATIONS. It is RECOMMENDED that Plaintiff's MOTION to Stay Judgment on 109 Objection to Report and Recommendations, Doc. No. 117 , be DENIED. Objections to R&R due by 10/20/2014. Signed by Magistrate Judge Norah McCann King on 10/3/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK EDWARD HURST,
Plaintiff,
vs.

Civil Action 2:11-cv-1090
Judge Smith
Magistrate Judge King

OHIO DEPARTMENT OF REHABILITATION
AND CORRECTION, et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff Mark Hurst, a former state inmate, filed this action on
December 7, 2011, naming as defendants the Ohio Department of
Rehabilitation and Correction (“ODRC”),1 Gary Mohr, Mona Parks, Dr.
David Weil, Karen Stanforth, Ralph Wilson, and six unidentified
members of the “Collegial Review Committee” under 42 U.S.C. § 1983,
alleging that defendants acted with deliberate indifference to his
medical needs in violation of the Eighth Amendment to the United
States Constitution.

On December 3, 2012, the Court granted summary

judgment in favor of the original defendants on all claims except the
§ 1983 individual capacity claim against Dr. Weil.
Doc. No. 52.

Opinion and Order,

See also Report and Recommendation, Doc. No. 47, p. 16.

Plaintiff thereafter filed the Amended Complaint, Doc. No. 58,
asserting claims against John Gardner and Dr. Andrew Eddy, the

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ODRC was dismissed as a defendant on January 6, 2012.
1.

Order, Doc. No. 8, p.

previously unidentified members of the “Collegial Review Committee,”
and Dr. Weil.
Plaintiff alleged that defendants acted with deliberate
indifference to his medical needs in violation of the Eighth Amendment
to the United States Constitution by denying necessary surgery and
rehabilitation for a rotator cuff tear.
58, ¶ 9.

Amended Complaint, Doc. No.

On September 30, 2014, and over plaintiff’s objections, the

Court granted summary judgment in favor of defendants on plaintiff’s
remaining claims.

Order, Doc. No. 115.

See also Order and Report and

Recommendation, Doc. No. 107. In granting summary judgment to
defendants, the Court found that plaintiff “failed to produce evidence
that Defendants acted with deliberate indifference” and that there is
evidence “that nonsurgical management is appropriate in some cases.”
Order, Doc. No. 115, pp. 1-2.

The Court also concluded that the fact

that plaintiff disagreed with the course of his medical treatment by
defendants was not sufficient to establish their deliberate
indifference to plaintiff’s serious medical need.
entered final judgment the same day.

Id.

The Clerk

Judgment in a Civil Action, Doc.

No. 116.
This matter is now before the Court for consideration of
plaintiff’s October 1, 2014 motion to stay the court’s ruling on
plaintiff’s objections to the August 7, 2014 Report and Recommendation
until plaintiff can obtain additional medical evidence.

Plaintiff’s

Motion, Doc. No. 117. Because final judgment has been entered in this
action, the Court will consider Plaintiff’s Motion by reference to the

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standards of Rules 59(e) and 60 of the Federal Rules of Civil
Procedure.
Rule 59(e) requires that “[a] motion to alter or amend a judgment
. . . be filed no later than 28 days after the entry of the judgment.”
Fed. R. Civ. P. 59(e).

A court may grant a motion to amend or alter a

judgment if “there is a clear error of law, newly discovered evidence,
an intervening change in controlling law, or to prevent manifest
injustice.”

GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804,

834 (6th Cir. 1999) (internal citations omitted).
Rule 60 provides in pertinent part as follows:
On motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a
final judgment . . . for the following reasons: . . . (2)
newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new
trial under Rule 59(b) . . . .
Fed. R. Civ. P. 60(b).

The decision to grant or deny a motion for

relief from judgment under Rule 60(b) falls within the sound
discretion of the trial court.

Futernick v. Sumpter Twp., 207 F.3d

305, 313 (6th Cir. 2000) (citing United States v. Universal Mgmt.
Servs., Inc., 191 F.3d 750, 757 (6th Cir. 1999)).

“The general

purpose of Rule 60(b) . . . is to strike a proper balance between the
conflicting principles that litigation must be brought to an end and
that justice must be done.”

Charter Twp. of Muskegon v. City of

Muskegon, 303 F.3d 755, 760 (6th Cir. 2002) (quotations and citations
omitted).
In the case presently before the Court, plaintiff seeks relief
from judgment so that he can obtain and submit as evidence the results
of a September 26, 2014 MRI of his shoulder and a recommended course

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of treatment based on those MRI results.

Plaintiff’s Motion, p. 2.

Plaintiff represents that he lacked the financial resources to obtain
an MRI prior to September 26, 2014, and that the MRI is “crucial to
this case.”

Id. at pp. 2-3.

According to plaintiff, the MRI was

necessary to determine if his rotator cuff can be surgically repaired.
Id. at p. 3.

This Court concludes that plaintiff has not demonstrated

grounds for relief under Rule 59 or 60.
By his current motion, plaintiff seeks to submit new evidence
(that he has not yet obtained) that may or may not demonstrate that
his rotator cuff can be surgically repaired.
p. 3.

See Plaintiff’s Motion,

However, the proposed new evidence is not relevant to the

Court’s determination that plaintiff “failed to produce evidence that
Defendants acted with deliberate indifference” or that there is
evidence “that nonsurgical management is appropriate in some cases.”
The evidence that plaintiff hopes to offer simply would not alter the
Court’s summary judgment analysis.

The proposed new evidence would

therefore be insufficient to create a genuine issue of material fact.
Accordingly, it is RECOMMENDED that Plaintiff’s Motion, Doc. No.
117, be DENIED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

October 3, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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